Marriage (Same Sex Couples) Bill – in a Public Bill Committee at 9:45 am on 12th March 2013.
‘No sanction may be imposed upon or discrimination exercised against any member of the clergy who refuses to conduct a same sex marriage who—
(a) is employed as a member of the armed forces;
(b) is employed as a chaplain in the National Health Service; or
(c) is employed by any other state institution or organisation.’.—(Tim Loughton.)
I beg to move, That the clause be read a Second time.
What a pleasure it is to have you in charge on this crisp spring morning, Mr Streeter. However, the light is beginning to fail and we are reaching the closing stages of this epic test match. Unless the Clerk produces any more surprises about delayed Divisions, the last man is in.
New clause 15 is actually very important. I am cautiously optimistic that we might get somewhere—[Interruption.] Before I have really started my speech, the hon. Member for Rhondda predictably has to get the knife in with yet another example of his complete intolerance of any other view that might be raised in Committee. The new clause is about reasonableness and, hopefully, engendering a bit of common sense in how the measure is interpreted in the interests of fairness and of not penalising people who, in good conscience, express certain views with which the hon. Member for Rhondda may wholly disagree, but which they absolutely have a right to express. The new clause is about protecting liberties and the freedom of the individual to express themselves in a reasonable manner.
One of the first concerns expressed by those objecting to the Bill was about its impact on free speech, especially the free speech of those working for public authorities who would, in the course of their job, have to speak about marriage or carry out a function in relation to marriage. They include teachers, prison chaplains, the police, fire service workers, hospital workers, other local authority workers and military chaplains. If they are not to be put in a situation in which, in the name of equality, they are required either to affirm same-sex marriage and therefore act in violation of their consciences or lose their livelihood, we must surely make it clear that there is space for them, just as there is space for same-sex couples.
These concerns, which are addressed by new clause 15, are very understandable, given the failure to fashion recent equalities legislation so as to ensure that the making of space for one protected characteristic does not jeopardise the best interest of another protected characteristic. Had previous equalities legislation been fashioned in this rather more enlightened and inclusive manner, the likes of Lillian Ladele and Gary McFarlane would both be in their jobs today. They would not have been compelled to sacrifice their employment to protect their religious identity. The Government have not been slow to respond to these concerns. They have been at pains to stress that teachers, chaplains and others will be free to express their objections to same-sex marriage and keep their jobs at the same time, and that those expressing concerns are overreacting.
It is important to consider some of the specific assurances that the Government have already provided. On page 3 of their factsheet on the Bill, they state:
“The Government is committed to freedom of speech and has always been absolutely clear that being able to follow your faith openly is a vital freedom that the Government will protect. Everyone is entitled to express their view about same-sex marriage at work or elsewhere.”
“Hear, hear,” say I, as do many other fair-minded people. This is very welcome, but how will this freedom be delivered for a chaplain employed by a public authority that is subject to the public sector equality duty and a legal imperative to be seen to do all it can to promote understanding of gay rights? That is not explained. My hon. Friend the Member for Battersea put the Secretary of State for Culture, Media and Sport on the spot on this issue. She said:
“I have one follow-up question on that and a quick question for the Secretary of State for Education. The provision for conscientious objection for people in public services and jobs is something many people wrote in about. Can you give us some idea about that?”
The Secretary of State replied:
“You are absolutely right to raise the issue of people with strong religious beliefs, whether it is providing services or in the public sector. They have a clear ability to demonstrate their faith at work. Some of the recent rulings from the European Court of Human Rights affirm the Prime Minister’s strongly held belief that people should be able to wear a cross at work as long as there are no health and safety reasons why they would not do that. People should be able to profess their faith in an appropriate way in a work setting.”––[Official Report, Marriage (Same Sex Couples) Public Bill Committee, 12 February 2013; c. 10, Q20.]
That was another welcome declaration of intent, but there is no delivery mechanism. Moving to the world as it is, there was only one favourable European Court of Human Rights ruling, and it had nothing to do with the clash between sexual orientation and religion and belief rights. The two cases that involved such a clash were both lost. Addressing these same rulings, which are so relevant to new clause 15, in its Marriage (Same Sex Couples) Bill myth-busters document, the Government set out the following so-called myth:
“The four recent European Court cases show that people are not free to follow their beliefs at work.”
They countered with this reality:
“On the contrary, Ms Eweida won her right to wear a cross at work. These cases were not about same-sex marriage. However, we have always been absolutely clear that being able to follow your faith openly is a vital freedom that we will protect.”
As I have just noted, Ms Eweida’s case had nothing to do with any clash between sexual orientation and religion and belief rights. The more relevant response is surely that three out of four people lost their cases, and where there was a clash between sexual orientation rights and religion and belief rights—these cases are relevant to our discussions—namely in relation to Lillian Ladele and Gary McFarlane, both cases were lost. The effect of the court’s application of our law was that Ladele and McFarlane had either to act in violation of their religious beliefs or to lose their livelihoods, which they did.
Indeed, the myth-busters document gives the distinct impression—one that moves me on to new clause 15—that the Government are trying to avoid the issue, because it does not address the two relevant cases at all, just the two cases regarding the wearing of crosses, which in this instance are completely irrelevant. Having stated that Ms Eweida won, the myth-busters document on marriage, where the presenting concern is the clash between sexual orientation rights and religious rights, with which two of the four cases were concerned, states:
“We believe people should be able to wear discrete religious symbols, provided it doesn’t hinder or physically get in the way of their job. In the other cases the Court found that the needs of health and safety and the requirement not to discriminate against customers were relevant considerations, on the facts of those particular cases—it is all about striking a sensible balance, which our legislation does.”
The Government seem to be talking about the irrelevant to cover the fact that, on the relevant presenting issue, the court cases provide no reassurances at all. That does not inspire confidence.
The Government’s statement on the Adrian Smith case is also relevant to new clause 15. The myth that the Government seek to bust states:
“The Trafford Housing case with Adrian Smith shows that people can be sacked because of their religious beliefs.”
The Government’s countering “reality” states:
“Adrian Smith actually won his case in the High Court, a judgment which shows that expressing views about this type of issue in a measured and non-offensive manner does not permit an employer to discipline an employee. Any such action by an employer would be unlawful.”
I find that attempt at busting myths and speaking truth to be disingenuous to the point of being misleading by failing to acknowledge two key points. First, Mr Smith actually lost his job and was not reinstated as a result of the judgment in his favour. As for the financial and emotional cost, the case has ruined him, and the courts awarded him less than £100 for his trouble. The judge, Mr Justice Briggs, was so outraged at not being able to award what Mr Smith deserved that he publicly expressed his dismay.
Secondly, there is no precedent for people such as chaplains, who are working for a public authority. Those people are specifically covered by new clause 15. As is made plain in the legal opinion of Aidan O'Neill QC, which we have discussed at various points in this Committee, the case was based on a common-law breach of contract claim, and Trafford Housing Trust is not a public authority subject to the public sector duty in section 149 of the Equality Act 2010. What is remarkable about the case, which demonstrates that the employment concerns of many people of faith are not based on unfounded fears, is that it should have been brought even before the law was changed, and that, despite the considerable distress and financial loss caused, Mr Smith was awarded only £100 in compensation.
There is no useful precedent here for the people for whom there is principally concern, namely those working for public authorities. Frankly, it is troubling that the Government are suggesting that the case proves that concerns about employment are misplaced. That does not make people who know better feel remotely reassured by any of the Government’s protestations that those subscribing to traditional views of marriage have nothing to fear in the workplace. Hence the need for new clause 15.
It is of concern that our established Church, the Church of England, has felt it necessary to speak out in its briefing on religious freedoms:
“We have continuing anxieties that the Bill as drafted will not offer adequate protection of the religious freedom of Christians (including but not limited to teachers, chaplains or those otherwise involved in public service delivery) who hold the view that marriage can only be between a man and a woman. Whilst some fears about freedom of expression may have been exaggerated, we doubt the ability of the government to make the legislation watertight against challenge in the European courts or against a ‘chilling effect’ in public discourse. We retain serious doubts about whether the proffered legal protection for churches and faiths from discrimination claims would prove durable. Too much emphasis, we believe, is being placed on the personal assurances of Ministers.”
Given in good faith, as I am sure they are, will those assurances stand up to legal challenge?
I think the Church of England’s final observation is particularly telling, and the Church is right. We have had repeated personal assurances from Ministers passionately affirming their intent that people should be able to express their views about same-sex marriage and keep their job. I do not doubt the good intent of the Ministers who have expressed those views. However, they have not eloquently explained how that will be delivered in practice; hence the need for new clause 15, which would clearly set out the process under the Bill.
Let us not forget that Aidan O'Neill QC and John Bowers QC have second-guessed the Government successfully on several occasions. They made it clear that there is no delivery mechanism and that the intention is simply hot air. The views of Professor Julian Rivers, who gave evidence to the Committee, are particularly worth reading on the subject. He stated:
“The word ‘compelled’ in clauses 2(1) and 2(2) is narrow. It naturally refers to a duty to act coupled with a sanction for failure to do so. But individuals and organisations which have not opted might easily be subject to detriment outside the narrow confines of the provision of same-sex marriage. For example, a minister of religion may have a role as a chaplain in a public institution, and a religious organisation might hire premises from a public body, or might offer public services in partnership with a public body. Such public (or, for that matter) private bodies might take decisions detrimental to the interest of the religious individual or organisation on account of their views of same-sex marriage. For example, if a prison chaplaincy were terminated on grounds of the individual minister’s opposition to same-sex marriage, it would be hard to describe him or her as being ‘compelled’. This form of detriment is particularly likely in the context of a public employer or landlord, on account of the public sector equality duty, which could be read in such a way as to require public bodies to promote the new view of marriage…It should also be noted that domestic courts have been unwilling to read conscientious objection clauses more broadly than the language naturally suspects…European convention law relating to conscientious objection is sparse, but has recently been expanded by the recognition of a clear right of exemption of pacifist ministers of religion from military service…It is possible that failure to provide full protection for dissenting ministers of religion and religious organisations may not be Convention-compliant.”
Before the hon. Member for Rhondda jumps up and refers to me as the son of an archdeacon—the latest inaccuracy—my father was a plain, humble parish rector. At one stage, he was chaplain to the local mayor for that mayor’s year in office, so he was performing a function beyond his duty as the parish rector. He might well have also had a role as a chaplain to the local hospital or prison. As it was, he had a regular radio show on Radio Brighton, where he was the local phone-in vicar as well. He performed many functions in his younger years, multi-tasking as vicars are so apt to do.
Having considered the Government’s attempted reassurances that are pertinent to new clause 15, the employment experience of those with a conscientious objection to same-sex unions, and the worries of experts, several things are clear. First, there was a huge worry on the part of many of those with a conscientious objection to same-sex marriage who were working for public authorities. Secondly, I am mindful of the two people whose loss of employment the European Court of Human Rights has recently endorsed, and the fact that two people have already lost their jobs because of their views on same-sex marriage, even before it has become law; those worries are certainly not without foundation. People working for public authorities would clearly be foolish not to hold such concerns.
Thirdly, the Government do not intend that anyone should lose their job on account of expressing their sincerely held belief that same-sex marriage is wrong. One of their statements of intent is particularly relevant to new clause 15; the Minister said in a previous sitting:
“Like other people, registrars are of course entitled to hold beliefs about marriage without restriction. They are free to express their views at work, as long as that is not done in an offensive manner and does not affect their ability to do their job.––[Official Report, Marriage (Same Sex Couples) Public Bill Committee, 26 February 2013; c. 236.]
He provided no reassurance in that context, as telling a registrar with a conscientious objection to same-sex marriage that he or she can express that at work, while simultaneously compelling them either to act in violation of their faith and officiate at same-sex marriages or to lose their livelihood does not get us anywhere. That is relevant to my new clause because of the case of Rev. Brian Ross, whose story hit the headlines just two weeks ago. He was a police chaplain, but last year, he expressed the view that marriage was an exclusive relationship between a man and a woman, and that he did not agree with plans to define it. He was entirely within the law to hold and express those views in the way that he did, but he was subsequently called in by his superiors, told that he was not acting in accordance with their equality commitments, and relieved of his responsibilities.
Three aspects of the case are particularly striking. First, it is another example of someone losing his or her job because of his or her views about marriage before the law has even been changed, when they merely had the temerity to affirm what is our current law. On this occasion, the employer was a public authority subject to the public sector equality duty. Secondly, Rev. Brian Ross only expressed his personal sincerely held view. Whether we agree with it or not, it was and remains his view. He did not refuse to provide any kind of service, although presumably he would not have agreed to go through with a marriage of a same-sex couple if he had been asked, but he had not been. Thirdly, he did not even express his view at work or in the workplace. On the basis of what the Minister said about registrars being able to express their opposition to same-sex marriage at work, I assume that he strongly takes the view that Rev. Brian Ross should not have been dismissed. I would be interested to hear him answer that specific point.
The simple fact remains that Rev. Brian Ross has been dismissed, and he would still be in work today were it not for the stated intention of introducing same-sex marriage. Of course, it may be that Rev. Brian Ross will take his former employers to court and find some protection in existing legislation. He may not; I do not know. I accept that he lives in Scotland, and will be subject to a different marriage Bill. However, he is not subject to a different equality Act; the Equality Act 2010 is UK-wide. If the Government really are concerned about the place of people in our society who, often for deeply held religious reasons, oppose same-sex marriage, and if they want to create a country where there is space for such people, just as there is space for people who believe in same-sex marriage, what possible reason could there be for doing anything other than accepting the new clause? If the Minister accepts it, the point will be made plainly for all to see in the Bill, and not simply in Hansard.
I hope that the hon. Gentleman will enlighten the Committee on whether police chaplains are paid, and on whether they are considered in law to be employed.
I do not know the answer to that, but I would hazard a guess that they do receive some form of payment, or at least expenses to defray the cost of carrying out the job. The Minister is better placed than me to know that, and I would be interested to hear his answer. I do not believe, however, that even in the case of honorary positions the law should be interpreted as it was in this case.
If the hon. Gentleman does not know whether the person concerned was employed in law, his new clause is completely nugatory, because it would not defend the person he seeks to defend.
I am told that Rev. Brian Ross was employed. The Minister can clarify the matter.
I am not sure that I can absolutely clarify the matter, but there are two points worth making. My briefing clearly states that Rev. Brian Ross served as a volunteer chaplain, so I suspect that he is not covered. We are on slightly dangerous ground when we debate the intricacies of this case, because we do not know the full details. Remember that he stepped down voluntarily; he was not sacked by the force. It may be that there was more to it than this one incident. For context, it is worth pointing out that the reverend—great man though I am sure he is—ran a website under the title “CrazyRev”, so there may be more to the case.
There were an awful lot of hypotheticals there.
Absolutely. There was a submission to the Committee that gave further details about that. On the last point, I would gently say that anybody within the confines of the Committee who has run their own website who, on that, may have published some photographs with titles that they may later regret—[ Interruption. ]
Order. The hon. Gentleman has been good up to now. It would helpful for all of us to get back to clause 15 and make some progress.
Of course, Mr Streeter. More will come out from this case in the fullness of time, but, for the deliberations of the Committee, it was timely that we faced not a hypothetical “what if”, which a lot of the argument on amendments has been about, but a real case of somebody—volunteer or otherwise—who stood down or was compelled to be relieved of his responsibilities. Whatever the intricacies of that specific case, somebody is no longer a chaplain on account of anticipation of the legislation. Many of us believe that that is just a taster of things to come, should the Bill end up being enacted as law, particularly if it lacks the sort of protections that new clause 15 is helpfully intended to introduce. That is what we are discussing now and what I have nearly finished proposing to the Committee—and I have lost my place.
I am very close to the last page. Thank you for putting your comment on the record, Mr Streeter, that you anticipated that I was on my last page. Not quite, but we are getting there. The light is fading fast—for certain members of the Committee it is fading faster than for others.
If the same-sex couples who wish to marry deserve such a provision, the people who otherwise stand to lose from it, those whose loss arises directly from their location in another equally protected characteristic, certainly deserve equal and opposite protections in the Bill. That is what new clause 15 is all about. Failure to make such provisions when the opportunity is so clearly present cannot but give the impression that the interests of one protected set of characteristics are more important than another.
In considering new clause 15, and the need to avoid suggesting that one protected characteristic is more important than another, we must ask: how could fashioning legislation that presents chaplains, and indeed other employers of public authorities who object to same-sex marriage, with the choice of either acting in violation of their faith conscience, which is itself a protected characteristic, or losing their job, be construed as a step forward for equalities? We are in desperate need of some historical perspective that I believe will demonstrate how we have lost our way and why new clause 15 is so important to put us back on route.
In the early 19th century, crudely majoritarian models of democracy were in vogue. In time, however, political thinkers such as de Tocqueville and Mill highlighted the dangers of the tyranny of the majority. Crudely majoritarian models of democracy were then exchanged for more sophisticated, liberal democratic approaches. Those involved fashioning laws out of primary regard for the wishes of the majority, but, at the same time, they asked whether a law had any perverse or unintended consequences for minorities, and that is the base of the safeguards that we are trying to inject into the Bill. Where laws did have that effect, the liberal democratic approach involved the provision of different treatment under the law for those minorities so that they would not be negatively affected.
We have now moved to a place where rather than simply framing laws out of regard for the majority and seeking to protect minorities from any unfortunate side effects, we are actually defining equality legislation from the perspective of minorities and governing the interactions of the majority with them. In making that shift, however, we are in danger of committing the most basic blunder of thinking that just because the legislation in question is equalities legislation, there is no need to ask whether it has perverse or unintended consequences on other minorities from which they should be protected by different treatment under the law.
The truth is that in just the same way that laws designed for the majority can have perverse or unintended consequences for minorities, from which they should be protected by different treatment under the law, so too can a law designed for one minority have a perverse and unintended consequence on another minority, from which it should similarly be protected by different treatment under the law. To fail to subject the development of equalities legislation to that simple liberal principle advanced by new clause 15 is to risk forging crude, unsophisticated majoritarian equalities legislation, a contradiction in terms if ever there was one.
In conclusion, although three small religious groups want to conduct same-sex marriages, religious groups seen in the round are in the main deeply opposed to the legislation. Any attempt on the part of the Government to champion religious liberty in this country must have regard to the fact that the Government cannot discharge their responsibilities to religious liberty by pretending that the identity of the protected characteristic of religion in England and Wales is anything other than overwhelmingly opposed. If they are therefore to define legislation for one protected characteristic, sexual orientation, which has an extremely damaging implication for another protected characteristic, religious belief, they must protect it through different treatment under the law. That would be the enlightened and progressive impact of new clause 15. Only when we forge legislation in such a way can we have any hope of creating an inclusive and tolerant country where there is space for both the champions of same-sex marriage and those who believe it to be wholly wrong.
If we do not introduce provisions such as new clause 15, our equalities legislation, rather than helping to foster an environment of mutual understanding and space, will only create sticks that can be used to beat other equalities strands. New clause 15 would provide for necessary different treatment under the law for chaplains. It would make it absolutely clear in the Bill that chaplains working for public authorities should not be sacked if they refuse to officiate at same-sex marriages and believe and teach that marriage, properly understood, can only be between a man and a woman.
I hope that is why the Government, in the spirit of understanding and of wanting to ensure that the safeguards in the Bill are effective, have spoken so much about the quadruple lock. If they are absolutely serious about it, as I hope and believe they are, I am optimistic that they will look sympathetically on the new clause and, if they do not take the wording as it stands, at least offer to take it away and see whether some more sophisticated safeguards can be added to the Bill at a later stage, so that we can at last believe that the Government are serious about protecting certain people who, for whatever good, sincere reasons, do not hold with changing the legislation.
I hope that that peroration was the last of the hon. Gentleman’s perorations in this Committee. We look forward to hearing it all again on Report. He referred to chaplaincy. It is true that a lot of clergy perform multiple roles; when I was a curate, I was also a chaplain in the local hospital. I particularly remember taking round communion every Wednesday morning, but on Christmas morning, when very few people were left in the hospital—anybody who could walk was sent home—I would have to do the 7 o’clock communion service in the chapel, and it would be broadcast throughout the hospital. It was slightly difficult, because there was not a single person who was physically able to be in the chapel with me, so I would have to say the responses to myself: “The Lord be with you.” “And also with you.” Theologically, that made it an invalid mass, but none the less we had to go through it.
Further to the point that the hon. Gentleman made to me earlier, did he perform those duties during his normal working day while he was employed as a priest?
To be honest, I am not sure whether there was such a thing as a normal working day. I just referred to 7 o’clock on Christmas morning. The hours that clergy work would probably put most MPs to shame, and MPs work long hours as it is. It was certainly a part of the duties that I was happy to perform, but to be honest, just as for an MP, there is no such thing as a job description. There is nothing that one is personally required to do; there are expectations, and there are instances in which one wants to be able to offer one’s time and energy.
The chaplain at the hospital had to be accredited, because the hospital could not just have anybody walking in off the street and saying that they were a cleric and they wanted to take communion round to everyone, or pray with everybody. The post was completely unpaid and voluntary, as is the vast majority of hospital chaplaincy in the country. Many hospitals also have a full-time chaplain, especially if they are large enough, but most district general hospitals do not have a chaplain who is full-time or employed. They only have volunteers who come in on a casual basis.
I used to do the special care baby unit, and I would go round and talk to mums who had just had children and were uncertain whether their children would live. The difficulty in such situations was that I had no idea how welcome I was—I was just walking around in a dog collar—and that is quite a sensitive thing to judge. If a member of the public is innocently lying in a hospital bed, or if they have been in a car crash or have been arrested and they are interacting with the police, a hospital or an ambulance, the last thing they want is an insensitive, intrusive cleric forcing their attentions on them.
The hon. Gentleman mentioned police chaplains, who, as I understand it, are always voluntary and unpaid. Some police forces decide not to have chaplains because their role is somewhat uncertain. When should a police chaplain be summoned? Should they be taken along to a car crash? Imagine a situation in which a homosexual couple has been involved in a car crash, and one of the partners has died. Suddenly, a hospital chaplain turns up who believes that homosexuality is immoral and that all homosexuals are going to hell in a handcart. The surviving partner would not welcome the religious or any other attentions of such a person. They would expect anybody who was brought into that situation by the public services to be neutral, at least, in that regard.
I look forward to the hon. Gentleman speaking to new clause 15—as ever, he is going to extremes—which deals with clergy who refuse to conduct a same-sex marriage, and who express that view. Does the hon. Gentleman take a different view depending on whether such people are volunteers or paid?
No. The main difference for me is whether a service is being provided out of taxpayer funding and on behalf of the whole of society. In such cases, people should be required to accept that they cannot refuse to talk to someone who is in a same-sex marriage simply because they refuse to believe in such a marriage.
We have heard hyperbole and some extraordinary hypothetical situations, but does the hon. Gentleman seriously think that anybody volunteering— rather than even being paid—as a hospital chaplain would prowl the wards, come across somebody who has been involved in a road accident in which their same-sex partner was killed and try to give them a moral lecture about their former relationship with their dead partner? Is that a serious contribution to the deliberations of the Committee?
If there were no system of accreditation, it is perfectly possible that people would want to volunteer to be a chaplain and, for instance—
The hon. Gentleman is chuntering again, and I cannot hear him. If he is going to attack my argument, the least he can do is listen to the reply. There are certainly people who have religious views that they want to impose on other people, who would indeed want to offer their chaplaincy to other people. My point is that where a hospital accredits someone, and allows them to walk around wards in a dog collar and be officially called a chaplain of the hospital, it is incumbent on the organisation to ensure that that person will be sensitive to the needs of the people they are dealing with.
New clause 15 might indeed be accused of hyperbole, but, more importantly, the issue that the hon. Gentleman mentions is entirely met by two facts. First, that each of the categories that he has referred to has not applied to somebody who has been employed in proper terms. Secondly, the provisions he wants to see are already met in clause 2, which makes it absolutely clear that
“A person may not be compelled…to conduct a relevant marriage…to be present at, carry out, or otherwise participate in, a relevant marriage, or…to consent to a relevant marriage being conducted.”
They are not going to be tainted if they do not want to be tainted. That is clear in the Bill. The hon. Gentleman has found a lawyer who has come up with the argument that the word “compelled” is not sufficient—[Interruption.] Is the hon. Member for Enfield, Southgate suggesting that he was the lawyer?
Mr Burrowes indicated dissent.
The point is that to be so abstruse in one’s argument about the meaning of the word “compelled” is unhelpful to the debate. Most importantly, the word “compelled” merely reflects all previous legislation governing when a cleric has to or does not have to perform the marriage of a divorcee.
The proposed new clause seems completely unnecessary. It does not meet the requirement that the hon. Member for East Worthing and Shoreham set up, namely to protect one police chaplain, whom he believes to be employed. He is not actually employed and would, therefore, not be caught by his new clause. I believe it is merely a means to make the same argument against the Bill that he has made on several other occasions.
Unsurprisingly, I rise to speak in favour of new clause 15. I appreciate what I heard from the hon. Member for Rhondda, as many of his arguments support the importance of the proposed new clause. He put forward extreme examples that would send a chill through the freedom of expression of those who are reasonably expressing a view on the issue. Clergy who refuse to conduct a same-sex marriage would no doubt express that view in a blog, in the pulpit and out and about on their rounds. It is on their behalf that the proposed new clause has been tabled, to ensure that, beyond these hallowed walls, there are not people who say that someone has nasty views about homosexuality that that individual does not in fact have, and try to argue that we should apply some equality duty and prevent their freedom to speak. The hon. Gentleman’s arguments follow through to the same conclusion, leading to a limiting of freedom of speech.
I would rather listen to the Secretary of State and the Minister, who said that it is on the tin, it is the name, it is the Marriage Bill. We have got the Ronseal deal—the 100% guarantee from the Secretary of State that there will not be an encroachment on religious liberty. New clause 15 seeks to ensure that that guarantee is what it says, that there will not be an encroachment. It is about encroachment on religious liberty. The Minister has insisted that there should be protection for those who do not agree with the new redefined view of marriage, and that their liberties will be ensured.
New clause 15 is not just about clause 2 of the Bill and the issue of opting in or out and what happens within the hallowed walls of religious premises. It also about what happens in the workplace, which can involve chaplains. There are already problems even before the Bill is enacted. We have heard the examples of Adrian Smith, Gary McFarlane, Lillian Ladele and now we can add to that list Rev Brian Ross. He is added not just because he has been plucked out of a Daily Mail or Argus headline. Before that he made a submission to this Committee. I am sure all Members of the Committee have read all the submissions and treated them as faithfully as evidence as that of the oral witnesses. That is all he did. He did not seek to curry any favour or make great play of it. However, the media got hold of the story on the back of that submission. He wrote to all Members asking them to take his plight seriously. I did not know he had a blog called “CrazyRev”. I am not sure if the Minister has a blog called “Robertson’s Rant”, but even if it is called that, he may well make some serious points in it, whatever he calls it. We should not just dismiss it out of hand. I certainly do not believe that the Minister wants to dismiss completely an important submission to the Committee. He will have his views on any blog, but he should take that submission to the Committee seriously.
The more serious point is the one before that. This particular gentleman was—as has already been said—a volunteer chaplain. We have his side of the story, but not the full police explanation. I would caution my hon. Friend in the nicest possible way about drawing too many general conclusions from a case where we do not have the full details from both sides in front of the Committee.
I am grateful to the Minister for his caution and warnings. This new clause 15 deals with employment and I will stick to the new clause. We hear comments that there is a rule for one and a rule for another in terms of employment and volunteers. Maybe we will get to the point where volunteers with certain views are not welcome in our fine hospitals. These hospitals, prisons and other places were founded because of Christians. You will see inscriptions saying that these good Christian folk actually set them up. It would be interesting to see what our forefathers and mothers would think, after their voluntary effort to raise money and support the building of those hospitals and other places, when we say that we will look at whether people are employed to see whether their liberty is protected.
Notwithstanding what my hon. Friend has said about the history of some of our public services, does he accept that they are today maintained by taxation on all people in our country, straight, gay or bisexual, and all ethnicities too?
I accept that. It is important that we protect liberty and all taxpayers would want us to do that. Part of that is to protect religious belief and a subset of that is a belief about marriage. Indeed, through the passage of this Bill the Minister has said there is that protection; so it is about seeing how far it goes and whether it goes beyond the walls of church buildings and religious premises.
In support of new clause 15 is the submission of the Rev. Brian Ross to this Committee. The Minister adds cautions and warnings, but it says:
“Just before the summer, a particular senior officer in one of the divisions read my personal blog and objected to my expressed support for traditional marriage, as it was claimed it went against the force's equality and diversity policies. I was summoned to a meeting, the end result of which has been that my services have been dispensed with”.
At the end of that letter to the Committee, he draws attention to the fact that, as has been said, that has happened before any legislation has even been placed on the statute book. We have a comment from Strathclyde Police, which responded by confirming that Mr Ross could not express his views on marriage in public. A spokesman said:
“Whilst the force wholly respects the Rev Ross’s and, indeed any employees’”— that is interesting—
“any employees’ personally held political and religious beliefs, such views cannot be expressed publicly if representing the force, as it is by law an apolitical organisation with firmly embedded policies which embrace diversity and equality”.
My hon. Friend the Member for St Austell and Newquay and others may say that when something is taxpayer-funded, it has to fully embrace equality and diversity. Strathclyde police and any other police force may say that Mr Ross and any other employee can have personally held views but not express them in any way in a public forum when representing the force or another public service, and that because that service acts on behalf of taxpayers, it should not express any support for traditional marriage. Is that the view we have?
I would really like to move on from this, because we do not have all the details here. For a sense of balance, it is worth reading out the other half of the quotation from Strathclyde police. With all due respect, the hon. Gentleman merely read out the most antagonistic part. A spokesman for Strathclyde police said last night that Mr Ross was not removed. It said:
“A number of parameters were set which would allow him to remain in position. These included adhering to an appropriate dress code and methods of conducting his chaplaincy and finally, compliance with the force’s equality and diversity policies.”
It is very clear from the position of Strathclyde police that there was more to this than simply one incident. But we are in dangerous ground if we try draw too many general conclusions from one particular case.
Mr Burrowes rose—
Order. It might help for me to say that, rather than trying the case of Rev. Brian Ross, let us go back to new clause 15.
I am grateful and I will move on. The issue is not just about Rev. Brian Ross. Indeed, it is about those who are, indeed, working for the Army. We have not dealt with the armed services chaplains. It is not just the police. Some chaplains are employed in large NHS hospitals. The Government are trying to say that they do not want to encroach on religious liberty. We cannot be satisfied simply with saying that we have given a whole lot of locks for the marriage ceremony without properly recognising that these members of the clergy and others go beyond their religious premises. They go into places of employment—public sector places—and they will not be able to keep their views in Church. Their views go with them and will be expressed by them.
It is impossible—unless this is what we want to do—to seek to put religion in its place and say, “Yes you can have your religious liberty as long as it does not encroach on mine. You can have your liberty as long as it just takes place in the walls of religious premises.” That is not good enough and it is not the way it works. Going back to the foundation of these public services, it is not that way that this country has historically reaped the benefit of Christians and others expressing their faith in a very practical, meaningful and long-lasting way. Indeed, that is why we have the tradition of Christian, and, now, multi-faith chaplains, who perform a very important duty and service. We need to recognise that this is important as a matter of principle.
I commend to the Committee another submission, MB 97, from the solicitor-advocate Sam Webster. This has also come up with new examples, which will probably come up during the passage of the Bill, that go beyond these particular chaplains to teachers who have got into difficulties for refusing to advance a positive view of same-sex marriage. Although they concern teachers rather than chaplains, they illustrate the heart of the problem that new clause 15 addresses. It is quite clear, for example, that those teachers were not refusing to acknowledge the existence of same-sex marriage and they were not trying to be unpleasant or make comments about homosexual people. The Secretary of State, Lord Pannick and others have assured us that people in this territory supposedly have nothing to worry about. However, we are already hearing examples that show that they are wrong. One primary teacher was told that calmly expressing her personal view was against the law and she was demoted. She has not had the appetite to pursue a court claim. A secondary school teacher was asked to teach about marriage and homosexuality and she also got into problems. I will not go any further with that and I ask the Committee to read MB 97, which sets out the circumstances.
Duties are imposed on public authorities on behalf of the taxpayers, as has already been said. Under section 149(1)(b) of the Equality Act 2010, there is an obligation to
“advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it”.
Sexual orientation is a protected characteristic and the Minister has made that very clear. There are chaplains who are employed—and there are also those who are volunteers, whom we can include in the debate as well—who will not endorse the new definition of marriage. The Government need to be crystal clear that those people are fully protected and that they will be on their side if they have to step down, even voluntarily without any formal dismissal. However, some may be dismissed down the line as a result of the application of an equality and diversity policy.
We need to ensure that we do not say to volunteers with a traditional view on marriage that they are not welcome and that they have no place in a hospital or that there is no room for them in a prison, in the Army or in another public institution or organisation. Whether they are volunteers or employed, the example that I have given is not what is so relevant; the issue is the principle at its heart. We need to recognise that they need protection. Aidan O'Neill QC advised that, under section 149, NHS managers would have proper grounds for justifying their actions, even if the chaplain was preaching inside his own church outside work time, and that there was a real problem there. The Government need to ensure there is the proper protection for clergy working in state institutions. New clause 15 is an excellent way for the Government, on this final day of the Committee, where we have already seen some concession, to show that they want to ensure that this 100% guarantee against encroachment on religious liberty really means what they say it does.
I thank my hon. Friends the Member for Enfield, Southgate and the Member for East Worthing and Shoreham, and it is a pleasure to follow both of them in this room today. I declare an interest, particularly in the British Army and the role of the chaplains. Some members of the Committee may be aware that I have served in the Army over 14 and a half years. Therefore, I have had the opportunity to meet those who have the role of chaplain, and to see the important role that they play, especially in the conflict zone where the soldiers’ attention is focused on what could happen to them just around the corner.
In the 1970s, a long time ago, I served in the Ulster Defence Regiment for three years, and also served in the Royal Artillery of the Territorial Army for 11 and a half years. I never did anything very exciting in the Territorial Army; I drove a 4-tonnne lorry, but somebody had to take supplies to the front, and that was the way it was done. The importance of that was that you had a chance to interact with soldiers in uniform on the front line and behind the supply line as well. I have also had the opportunity to be a member of the armed forces parliamentary scheme, which gives us all who are interested and to members—perhaps hon. Members here have had the opportunity to serve in that; I would recommend it strongly—an opportunity to gain first-hand experience of the armed forces.
During this long period of time, I met a large number of Army chaplains, and formed good friendships with them. I have met some of the chaplains in Afghanistan, on two occasions, and I have met them at home as well. Whenever you see the role that they play, a very important role for the soldier—it is good to know that they are there. I have been struck by how crucial their role and presence is for the morale and welfare of the armed troops. That is why on new clause 15, I am pleased to speak on the armed forces chaplains and their importance. I hope that in his response at the end, the Minister will be able to give us some assurance and perhaps a review of that because I feel it is a critically important issue.
Chaplains whom I have met have all had clear fundamental views that clearly suggest—from those that I have spoken to—that the definition of marriage is one man and one woman. That is what they say, and this will affect them in their role in the Army, Royal Air Force or the Royal Navy. For centuries, Army chaplains have ministered to soldiers, got alongside them in the trenches, on the front line, in the hospitals or wherever they may be, in times of war and in times of peace. They have been committed to serve whether the British soldier was to be found. Wherever there is a British soldier, you will find a chaplain not too far away, who will be there to give support, whatever the personal cost may be to them. That is still the case today.
Nothing I can say focuses the attention of the ordinary soldier as much as the thought that tomorrow they could be injured, or perhaps killed, as a result of their role. The chaplains have provided—and continue to provide—spiritual leadership, moral guidance and pastoral support to all soldiers irrespective of the soldier’s religion or beliefs. In many cases, they also minister to the families of military personnel, as well civilians working for the military. The role of the chaplain is important for the soldier on the front line, but also for his family back home. When I was in Afghanistan and had the chance to be alongside soldiers, I saw that the chaplains’ role was not only with the soldiers there, but also with the families back home. Even though they were thousands of miles away, they were able to give the support and encouragement that was needed. During the great war and the second world war, various army chaplains became synonymous with the bringing of comfort, care and compassion to those caught up in the bloodiness of war. I say all that because, under the current proposals, there is the serious danger that many chaplains will be punished and perhaps dismissed from their post due to their opposition to same-sex marriage.
Does the hon. Gentleman accept that we have had straight members of the armed forces serving alongside lesbian and gay members for some time now? It is exactly because they may all need the guidance of a chaplain that it is important that we maintain an equality duty. Do we not have a duty to those gay members of our armed forces, too?
I wish to put forward the views of the chaplaincy, which has been requested of me. The chaplain plays a special role and even more so in the event of an injury or death on the front line, which causes trauma, where help may need to be administered to everyone. We are here to discuss the issue of the redefinition of marriage, so we have to consider such matters and how chaplains will be affected. Whether hon. Members accept that point of view is irrespective of the fact that it must expressed .
As my hon. Friend the Member for East Worthing and Shoreham says, people should be able to articulate their views on the subject of same-sex unions without living in fear of punishment or being sacked. That is a real concern for chaplains in the services, and it is why we seek assurances on, and perhaps the reconsideration of, this issue from the Minister. Clergy who simply hold to the long-standing definition of marriage, which is the one that accords with their religious beliefs and convictions, should not face fear of punishment or being dismissed from their job.
In the summary of his legal opinion on the implications for freedom of conscience and religious liberty arising from the redefinition of marriage in England and Wales, Aidan O'Neill QC asserts that NHS and Army chaplains who argue for traditional marriage in sermons in church on Sunday could find themselves in trouble for expressing the same views in their workplace on Monday. That is a difficult situation, and nothing in the Bill prevents it. Mr O'Neill also outlines the example of a Church of England clergyman who is both the vicar of a parish and the chaplain at an NHS hospital. The clergyman conducts a wedding in his church, during which he preaches a sermon and speaks about how the New Testament teaching about Christ and the Church is mirrored in the relationship between a man and a woman in marriage. In passing, the clergyman states that that is why marriage can be recognised only as the union of a man and a woman. The law of marriage has recently been amended in England and Wales to allow those of the same sex to marry one another, although the traditional definition of marriage still operates within the Church of England and Church in Wales. The NHS hospital learns about the chaplain’s publicly stated view and the hospital terminates his services as a chaplain, stating that it is against the hospital’s diversity policy and that the public sector equality duty requires that the hospital management tackle prejudice and promote understanding of homosexual rights.
Mr O'Neill goes on to argue that the hospital would have justifiable reasons to dismiss the chaplain. He says that while it may be claimed that a dismissal in the circumstances outlined in the aforementioned scenario violated the individual’s right to freedom of thought, conscience and religion under article 9 and/or freedom of expression under article 10 of the European convention on human rights, it would be open to any tribunal to conclude that the decision to dismiss was within the band of reasonable responses for an employer. Will the Minister give the Government’s position on that issue?
Furthermore, Mr O'Neill says that the dismissal could be seen as proportionate and not procedurally unfair, because it was done in accordance with the law to achieve a legitimate aim in a manner which is necessary in a democratic society. He concludes that the employer’s chances of successfully defending any action for unfair dismissal or breach of convention rights would only be heightened if there were a change in the law allowing for marriage between two people of the same sex.
New clause 15, as articulated by my hon. Friend the Member for East Worthing and Shoreham and other hon. Members, tries to address those major concerns. All the concerns that we have expressed have been raised sincerely, honestly and truthfully on behalf of the people we represent, to articulate their viewpoint to the Committee.
This is an issue is of crucial importance. It provides protection for the countless numbers of Army chaplains, NHS chaplains, and other clergy employed by state organisations or institutions, who do not feel able to endorse the definition of marriage that the Government propose. The Minister needs to give further consideration to these matters. As my hon. Friend indicated, the Government should consider in particular the position of chaplains in the armed forces, and how the matter would affect them.
In conclusion, as parliamentarians, we have a duty to protect fundamental religious liberties in Committee and in Parliament. Under the current terms of the Bill, such liberties are in danger. People’s livelihoods are also in danger. This is a deeply serious matter. I urge the Government to support new clause 15, and to give the issue the review and the consideration that it deserves.
I had not intended to speak, but I want to put a few thoughts on the record. To my hon. Friends the Member for East Worthing and Shoreham and the Member for Enfield, Southgate, who have tabled the new clause, I say that we should not forget that gay and lesbian people pay for our public services. Gay and lesbian people use our public services, and gay and lesbian people work in our public services. Very brave gay and lesbian people serve in our armed forces, and our very dedicated gay and lesbian doctors and nurses work in our NHS hospitals. My hon. Friends seem to be saying that for some people in those organisations who have relationships with their colleagues and with those to whom they provide a public service, it should be okay to be able to set out the view that certain lifestyles are wrong.
I put it to my hon. Friends and the hon. Member for Strangford that the Bill already provides the correct balance. It allows those people who want to move forward into a gay marriage to do so, and those religious organisations that choose to offer gay marriage will be able to deliver that. Nobody is compelled to have a gay marriage, and no religious organisation is forced to carry out a gay marriage.
We have been round this debate about how public servants in our schools can present their own particular viewpoint. The law is clear that there are protections that allow them to do so, but at the same time make sure that people are aware of the full range of options that are open to them. We must not lose sight of the fact that we are here as a Parliament to provide public services for everybody, and that includes those people in our community who are homosexual.
Probably to everybody’s relief, this may be the last time I have to speak, with a fair wind and good fortune.
Yes—I meant in Committee. On behalf of the whole Committee, I thank you, Mr Streeter, and Mr Hood for chairing our deliberations, and I thank the Clerks who have helped us through this. On an entirely parochial basis, I place on the record my thanks to my Bill team, who have done an enormous amount of work to bring this legislation before us today.
I am entirely in sympathy with the view that a minister of religion is entitled to act in accordance with his or her beliefs regarding same-sex marriage, and to do so without being disadvantaged by his or her employer. As we have discussed, clause 2 plainly states that someone “may not be compelled” to conduct a marriage of a same-sex couple. It would clearly be a compulsion to threaten someone with disciplinary action or to take other action against them if they refused to do so. I am absolutely happy to place that on the record.
Furthermore, as I have made clear in earlier debates, the Equality Act 2010 makes it unlawful for an employer to discriminate against somebody because of their religion or belief. If a chaplain was punished or treated less favourably than another employee because of his or her particular belief about the nature of marriage, that would be unlawful discrimination because of religion or belief under the Equality Act, and he or she would be able to bring proceedings against his or her employer. Again, I am happy to place that on the record. There is a particular problem with the new clause as drafted, as it uses the undefined “discrimination”, which is done in such a way as to divorce it from the carefully structured provisions of the Equality Act, so there is a danger of simply creating confusion.
It is Tuesday morning and we are getting towards the close, however, so I am keen to end the Committee on a happy note. I thank the hon. Member for Strangford for his remarks about Army chaplains and for his service in the Ulster Defence Regiment. To reassure hon. Members, we continue to give careful thought to the position of ministers of religion employed by secular organisations. We are absolutely clear, as we have said many times, that a minister must not be forced to conduct a same-sex marriage. It must be clear that refusing to marry same-sex couples is not unlawful sexual orientation discrimination under the Equality Act, but we are looking carefully at whether protections can be strengthened for chaplains who are employed by other than religious organisations and who do not wish to marry same-sex couples. In order to be helpful, therefore, I am happy to give the Committee a commitment that we will take the matter away and look at it carefully. If we are convinced of the case for strengthening that position and for extra protections to give people more confidence, I will do so on Report.
I reiterate my thanks to you, Mr Streeter, and to Mr Hood, to the Clerks and to my Bill team. With that, I ask my hon. Friend the Member for East Worthing and Shoreham to withdraw the new clause.
As this appears to be the last issue that we will debate, Mr Streeter, I echo the Minister’s thanks to you and to Mr Hood for your completely discreet and objective chairing of the Committee, notwithstanding the odd comment from a sedentary position, and to the Clerks, who have furnished us so well with an awful lot of material that has come in from members of the public and outside bodies, enabling us to complete our deliberations after full and considered scrutiny of the measures within the time allotted.
We have had a lively debate. Clearly, there are strong differences of view on the principle of the Bill, with strong views on both sides. The purpose of the Committee, as with all Committees but particularly so in this Committee, has been for the assurances and safeguards that the Government have been at pains to stress are important to the Bill to be teased out and defined, more closely perhaps than in other measures that polarise views but are less controversial.
The most recent contribution of the Minister was refreshing and welcome, in contrast to his opposite number: even before some of us had started our speeches, the hon. Member for Rhondda weighed in, with that hallmark of intransigence and intolerance which I am afraid he has displayed throughout the Committee, to say: “You are wrong.” We are not wrong on the new clause, because it is born of the genuine fears of people whose livelihoods would be affected if the measure were interpreted differently from how I absolutely agree that the Government want it to be interpreted. We have sought to give examples of how that could happen and cited some examples where it might already be happening. The Bill, however, has not yet been enacted and the proof of the pudding will be when the measure becomes law, if it does.
At times in Committee, I felt that two Banquo’s ghosts were informing our proceedings. They are often alluded to, perhaps more by the hon. Member for Rhondda than by me. One is my father, a retired vicar of senior years to whom I pay tribute for informing this Committee. Incidentally, he does not agree with the Bill, but then he also has some slightly odd views about ordaining women priests and bishops, with which I do not agree. The other Banquo’s ghost is the former persona of the hon. Member for Rhondda as a vicar in his own right. When and why he decided to give that up and move to the less moral high ground of becoming a Member of Parliament, we do not know. Some interesting people have informed our deliberations.
Above all, the new clause, which was informed by the concerns of Army chaplains, tries to ensure that people can go on doing jobs to which they are dedicated and that require them to hold sincere beliefs based on their faith. We expect men and women of faith to hold their views sincerely in order to use their position to influence, guide and support their parishioners and congregations. The new clause tries to give assurances that are absolutely in character with the quadruple lock that the Government have said so much about, which provides safeguards in the Bill.
Perhaps we should have tried some of our other amendments on a Tuesday morning, as the new clause appears to have found the Minister in a more favourable mood. Whatever the reason, I was greatly heartened when he ended his response to the new clause by saying “however”. He has offered, in the spirit of tolerance, the recognition that there are serious concerns about how the Bill may be enacted and what unintended consequences it might have in certain cases. I was heartened by his preparedness to take it away and see whether the Government can add something to the Bill, which will go a long way towards giving the assurances sought in the new clause.
I fully acknowledge, as I said in my opening comments, that the wording may be defective. Without the support of parliamentary draftsmen, it is often difficult to fashion amendments that would tolerate scrutiny within legislation. On the basis of what the Minister said, I am grateful. On that final note of accord in the Committee, I therefore beg to ask leave to withdraw the motion.